Posts tagged: Xi Jinping

In preparation of the three-day plenum set to start on Monday, the Central Committee of the Chinese Communist Party, the Party’s highest ranking body, announced today that it would propose the elimination of the term limit provision found in the Chinese Constitution. While the proposal still has to be ratified by the National People’s Congress (NPC), which is set to convene on March 5, 2018, the Party-controlled NPC will likely rubberstamp the proposals that emerge from this week’s Party plenum.

Added to China’s 1982 Constitution, the term limit provision limits the president and vice-president to two, five-year terms. It was put in place in response to the excesses of the Cultural Revolution and the one-man leadership of Mao Zedong, with its goal to ensure the peaceful transfer of power from one leader to another and eliminate the consolidation of power in one man. But it’s repudiation all but guarantees that current President Xi Jinping will continue on as China’s leader well past 2023, when his second term was to end. It also signifies that, with the rapid purging of rivals through his anti-corruption campaign, all power now resides with Xi. Gone is China’s governing model of a collective Party approach, an approach where Xi would merely be the first among equals, an approach that has ruled China for the last 35 years.

The last time a U.S. President met a one-man-rule leader.

How will the United States confront this new challenge is anyone’s guess. The United States, only formally recognizing the People’s Republic of China in 1979, has only engaged China with a collective leadership. And as if on cue, last week, the Asia Society’s online magazine, ChinaFile, published a series of conversations from experts about how the U.S. should engage a rising China under Xi Jinping. It’s a very timely piece and well worth the read, with many already acknowledging complete power in Xi. And while Professor Jerome Cohen in his piece rightly points out that Xi will eventually pass from the scene and there will be a reaction to his harsh rule, much like there was when Mao died, expect that point to be much further away now that Xi will likely be able to rule indefinitely.

Every five years, the Chinese Communist Party (CCP) holds a Party Congress, a week-long, rather formulaic meeting of Party members that is more about palace intrigue — who in the Party advances, who is left behind — than it is about anything substantive. At most, broad policies for the direction of the Party, and hence direction of the country in this one-party state, are announced. The world media usually looks on with feigned interest.

But, as the CCP opens its 19th Party Congress this Wednesday, this year will be different. For the first time, the Party Congress comes as China’s global star is truly on the rise, with the United States pretty much on retreat in the region, at least as a reliable, predictable partner. As a result, the future of China’s leadership has become more important to the world, especially as the current leader, Xi Jinping, seeks to consolidate his power.

Since taking over leadership of both the Party and the State in 2012 and 2013 respectively, Xi has moved China’s governing model away from the collective Party approach of his immediate predecessors, an approach where he would merely be the first among equals; an approach that was largely put in place in response to the excesses of the one-man leadership of the Cultural Revolution. Instead, with Xi, all power increasingly resides with him and he has sought to fill the inner rankings of the Party with his supporters.

Party Man Wang Qishan (Photo Courtesy of the Epoch Times)

In that regards, this week’s 19th Party Congress will largely be watched to see who will replace five members of the seven-member Standing Committee of the CCP’s Politburo, each of whom will hit the retirement age of 68. Who takes over the reins, and whether they are considered Xi’s people, will foretell the depths of Xi’s power over the Party, and thus the state. But it is the future of one person on the Politburo Standing Committee that will be most revealing: Wang Qishan, the current Secretary of the Party’s Central Committee for Discipline Inspection, the committee responsible for policing Party members. Wang, who is already 69, should be replaced during this Party Congress under the Party’s unwritten rule of forced retirement at the age of 68. But there is speculation that this rule will be broken so that Xi can keep his right-hand man on his anti-corruption campaign, a campaign that for sure has exposed corruption at the highest levels but has also allowed Xi to easily purge his rivals. If Xi is willing to break this unspoken rule for Wang, then there is good chance that in five years, he will break the rule for himself and continue on for an unprecedented third term as Party head and Chairman of the Central Military Commission, the two posts that hold real power in China.[1]

But the other thing to watch for at the 19th Party Congress is Xi Jinping’s doubling down on his anti-corruption campaign. And not just because Xi has used the campaign to purge high-level officials who he considers a threat to his one-man rule — think Bo Xilai, Zhou Yongkang,and now, Sun Zhengcai, a man slated to be Xi’s successor until he was expelled from the Party. Instead, the anti-corruption campaign has been an affront to the rule of law in China. Expect the 19th Party Congress to signal the codification of the abuses of Xi’s anti-corruption campaign.

Currently, the anti-corruption campaign is largely conducted through the Party’s Central Commission for Discipline Inspection (CCDI), a commission ostensibly responsible for investigating Party members’ violation of Party rules and of which Xi’s right hand man, Wang Qishan is still the head. Theoretically, the police and procuratorate are responsible for investigating and prosecuting any corruption or bribery that rises to the level of a crime. But in practice, the police, prosecutor and courts are a mere after thought to the CCDI. That is largely because, outside of the confines of the law, the CCDI is able to secretly detain Party members, deny them access to a lawyer and interrogate them in secret locations. According to Human Rights Watch, torture and ill-treatment during these secret Party detentions, known colloquially in China as shuanggui, are prevalent. Instead of there being two separate systems, the Party and the State, the two are intertwined according to HRW: the prosecutor is a part of the shuanggui process, using the confession obtained through that investigation in the prosecution of the case. In the Bo Xilai case, Bo attempted to retract his confession at his trial, stating that it was made under duress. In the end, the court ruled against him and he received a life sentence on charges of corruption and bribery.

Bo Xilai on trial in 2013

But having the shuanggui system in place, a system that exists in the shadows of the law, has not been enough for Xi. Last November, the Party announced a new pilot program for Beijing, Shanxi and Zhejiang provinces where the Party would create a new government body, a Supervision Commission. As the Party doesn’t really have the full authority to create new governmental bodies, a month later, the Standing Committee of the National People’s Congress (NPC), adopted the Supervision Commission pilot project. That Supervision Commission would be the sole entity responsible for corruption and bribery by Party members, state officials, the legislature, the courts and state employees, taking away that responsibility from the Procuratorate and the Anti-Corruption Bureau. The Supervision Commission will also have the power to interrogate and detain individuals as well as freeze their assets; it is unclear what role the courts will play – if any – in oversight of the Supervision Commission’s broad powers. According to Prof. Zhiqiong June Wang, while much is still unknown about these Supervision Commission, what is known is that they will share personnel with the Party’s CCDI. Prof. Wang anticipates that the NPC will seek to adopt the pilot project nationwide in March 2018.

Corruption is a serious problem in China and there might be an argument that bringing the anti-corruption campaign into a strong, unified government body will be good for transparency and legal protections for the suspects, something that is currently ignored by the CCDI. But the question remains – will codifying this campaign bring it out of the shadows of the CCDI or will it just bring more shadows to the law? It seems like the latter is the more likely outcome. First, even if the Supervision Commission were to follow the law, China’s Criminal Procedure Law (CPL) still allows the Commission to legally hold suspects incommunicado under “residential surveillance at a designated location” for six months without access to a lawyer. This is because the provisions of the CPL that the police currently use to do this to political activists under the guise of national security – Articles 37, 73 and 77 – apply where there are suspicions of “especially serious bribery.” In a way, the CCDI’s methods have already been codified – and are actively being used with little reprimand – in the current CPL.

And with Xi only consolidating his power further at the 19th Party Congress, don’t expect there to be any divergent voices – anyone who cares about the Party and the government being subject to the law – in the Supervision Commission. The Party-State being subject to the law is not really Xi’s thing. As if to demonstrate this further, this past weekend, the current head of the Ministry of Justice, Wu Aiying, was expelled from the Party. Who replaced her as Justice Minister? Zhang Jun, a former deputy chief of the CCDI.

[1] China’s Constitution limits the President, a state position, not a Party one, to two terms. But it is the two Party positions where real power lies. Deng continued on as China’s paramount leader as a force within the Party.

To say that the U.S. air strike on Syria overshadowed the Trump-Xi summit last week would be an understatement. The event basically eclipsed the two day conference, pushing the meeting between the leaders of the world’s two largest economies to second page news.

But even without the Syrian air strike, the summit would not have created much news. In fact, in the way Trump and Xi each described the outcome of the meeting – deepening their friendship and making progress in their relationship – it seemed more reminiscent of a marriage proposal in Elizabethan England than a discussion between two powerful countries that have been having a difficult relationship.

But did anything substantive come out of the summit? The South China Morning Post has a great review of the issues discussed – and not discussed – at last week’s summit. But here are some highlights:

Trade

At Mar-a-Lago last week (Photo Courtesy of AP Photo/Alex Brandon)

Trump did raise the issue of trade and, according to Secretary of State Rex Tillerson, Trump “underscored the need for China to take concrete steps to level the playing field for American workers, stressing repeatedly the need for reciprocal market access.” But it is unclear if the statement resonated with the Chinese delegation. And, contrary to some pundits’ expectations, Xi did not come to Mar-a-Lago with a peace offering, namely proposing job-creating investments in the United States.

Instead, the two sides announced the 100-Day Plan, a policy to completely overhaul their trade relationship within 100 days. While most countries take years to rebalance a trade relationship, Trump and Xi are going to do it in a mere 100 days. Secretary of Commerce Wilbur Ross correctly noted that this approach would be a “very big sea change” but offered no explanation exactly how all of this can occur in a matter of three-and-a-half months or even why it should; why such a rush to recalibrate the most important trade relationship in the world is a good idea.

North Korea

While both countries acknowledged North Korea as a growing nuclear threat, no middle ground was met. It appears that Trump continued to warn China that if it did not do more, the U.S. would follow its own course of action, and with the Syrian attack in the backdrop, one can only imagine what Xi was thinking in all this. China’s foreign minister however noted that if North Korea ceases its nuclear program, then military action in the region should also cease. Interestingly, this was the suggestion that Beijing made last month: to halt the joint U.S.-South Korea military drills to induce North Korea to coming back to the negotiating table. The U.S. did not listen and instead continued with the drills.

Human Rights

Just say no to human rights

Neither side mentioned whether human rights was raised during the summit and, given the agendas of these two men, it likely was not. But in a White House-approved statement after the summit, Tillerson again used the vocabulary of the Chinese Communist Party (“CCP”) to describe the U.S.-China relationship: one of “mutual interest.” For the Chinese, this is not rhetoric but words that come with baggage. Mutual interest is often used by China to scold other countries when those countries question China’s domestic policies. Usually used in relation to China’s interest in Tibet and Taiwan, it can also be used in defense of foreign criticism of policies that seek to viciously stamp out civil society. So expect human rights to play a low role in Trump’s policy toward China.

State Visit & U.S.-China Comprehensive Dialogue

Trump – already big in China

Xi invited Trump to a state visit in China this year and Trump said yes. But more importantly, the U.S. and China established a framework by which to hold high-level talks, the U.S.-China Comprehensive Dialogue. Make no mistake, this is not a new idea. Under the Obama Administration, the U.S. and China would periodically host the Strategic and Economic Dialogue, the Human Rights Dialogue and on occasion, the Legal Experts Dialogue. It appears that Trump and Xi are going to replace these dialogues with the U.S.-China Comprehensive Dialogue (date yet to be announced) which will have four tracks: a diplomatic and security dialogue; a comprehensive economic dialogue; a law enforcement and cybersecurity dialogue; and a social and cultures issues dialogue. Again, human rights was not named as a specific issue and if it is unclear if this issue will merely be squished into the social and cultural issue dialogue.

So in the end, not many outcomes from the Trump-Xi summit. Perhaps what is more telling though is what was not said at the summit. No mention of Taiwan, no mention of human rights and no mention of increased Chinese investment in the U.S. to create jobs. But check back in 100 days.

In July 2015, the Chinese government detained close to 250 lawyers, paralegals and activist in a nationwide crackdown on China’s nascent civil rights movement. The crackdown was unprecedented in its scope, with lawyers and activists simultaneously abducted from their homes and often in the dead of night. It seemed to signal the nadir for China’s rights activists but, as China Human Rights Defenders‘ (“CHRD”) Annual Report reflects, it was far from rock bottom. In 2016, the world witnessed the fallout from these arrests and a regime even more intent than ever on stamping out China’s civil rights movement. But while that fallout continues domestically, internationally, China is seeking to play a more important role and reshape the current global order. But the United States and western Europe – intent on pursuing more isolationist policies – ignores China’s domestic turmoil at its peril.

Map reflecting the national crackdown of Lawyers and support staff, July 2015 – October 2015 (courtesy of China Human Rights Lawyers Concern Group)

As CHRD’s 2016 Annual Report demonstrates, the Chinese government views these civil rights activists’ work – even activities as seemingly innocuous as bringing a lawsuit to test China’s commitment to its own laws – as a threat to its power. In 2016, these activists were not detained nor charged with the relatively minor crimes such as disturbing public order or unlawfully organizing a protest; instead, these arrested activist were charged with the more serious crimes that implicate national security issues and carry much heavier sentences. Look at what happened two years prior. In January 2014, Xu Zhiyong, an influential civil rights lawyer and activist, was convicted of “gathering crowds to disturb public order” (Criminal Law (“CL”), Art. 296)and sentenced to a prison term that was considered extreme at the time: four years. Fast forward to 2016 and Zhou Shifeng, one of the alleged “ringleaders” of the lawyers detained in July 2015, was convicted of subversion of state power (CL, Art. 105) and sentenced to seven years in prison.

And Zhou is not the only one. As CHRD portrays in a powerful chart in its Annual Report, in 2016, 16 rights activist were convicted of crimes relating to national security. Compare this to only three in 2015.

Graphic courtesy of CHRD’s Annual Report

These more drastic charges of national security means that the police and prosecutors can all but abandon most due process rights enshrined in the amended Chinese Criminal Procedure Law. As the CHRD Annual Report notes, a national security investigation allows the police to unilaterally hold a suspect under “residential surveillance in a designated location.” With residential surveillance in a designated location, a location that is often unknown to the person’s family and lawyers, the police can legally hold a suspect for six months and, because the person is being investigated for a national security crime, the police can also lawfully deny access to an attorney. (For a case analysis of the laws surrounding residential surveillance in a designated location, see Codifying Illegality? The Case of Jiang Tianyong). Without access to a lawyer, contact with the outside world and likely subject to torture, CHRD’s 2016 Annual Report notes an uptick in a disturbing trend: televised forced “confessions” of rights activists before any trial.

2016: The Passage of Laws that Specifically Target Civil Society

China’s Foreign NGO Law is no lighthearted 1940s Hollywood movie.

But if these long prison sentences are not enough to squelch future rights activists, the Chinese government has adopted a series of laws to further restrict civil society. China’s Foreign NGO Law, passed in 2016 and went into effect on January 1, 2017, is an attempt to cut civil rights activists from contact with international civil rights organizations, especially those that provide financial support. In fact, as CHRD notes, in many of the recent prosecutions of rights activists, accepting foreign funding has been used as evidence of the activists’ subversion of state power. Foreign NGOs that the police believe engage in behavior that “endangers national security” are blacklisted. Presumably any Chinese person who interacts with these blacklisted foreign NGOs will likely be suspected of national security violations.

Similarly, the Charity Law makes it near impossible for many Chinese civil rights organizations to raise money domestically if they are not officially registered with the Ministry of Civil Affairs. Most likely those organic civil society groups that have been most effective but also have been viewed by the Chinese government – or more aptly the Chinese Communist Party – as a threat to its rule, will not receive permission to register with the Ministry of Civil Affairs. As the stakes get higher, these organizations will likely cease to exist, eliminating an important channel that exposes societal discontent in an authoritarian regime.

(image courtesy of WCCF Tech)

But if those laws prove insufficient to completely eradicate any form of civil society not controlled by the government, in November 2016, the Chinese government passed its National Cyber Security Law which will provide for unprecedented surveillance of its citizens. Under the Cyber Security Law, the government has the right to restrict the internet to protect national security and social public order (Art. 58). Although implementation of the law has yet to be seen, presumably it can be used to shut down any online communication the Chinese government deems a security or public order threat. And as its recent prosecution on national security charges show, the Chinese government will likely view any efforts for civil rights activists to organize over social media to be a national security threat.

President Xi at the 2017 World Economic Forum in Davos, Switzerland (photo courtesy of Forbes)

While CHRD’s Annual Report reflects a deteriorating human rights situation, China’s star on the global stage has only risen, especially as the United States has elected an isolationist president. China’s most recent zenith came on January 17, 2017, when President Xi Jinping was granted the honor of delivering opening remarks at the Davos World Economic Forum, the world’s orgy to capitalism and globalization. In his speech, Xi called on the world to maintain its longstanding policies of “economic globalization,” implicitly distinguishing this concept from the liberal world order that created it.

For sure, Xi’s speech, calling on continued free trade, a policy that allowed China to quickly develop as an economic power, was a success at Davos. Especially as the United States and some parts of Europe retreat in their commitment to the world order they helped to put in place after World War II. But what Xi misses in his exclusive focus on “economic globalization” is that it does not exist in a vacuum. Economic globalization is only one aspect of the current liberal world order. Liberal political systems, liberal economics, more inter-connectedness among people of different countries cannot be eliminated from the post-World War II world order that brought the free trade Xi celebrates. All of these elements together is what has brought peace to much of the Western World and East Asia for close to 65 years, a peace that has been essential to China’s economic rise.

Setting up the post World War II order at Yalta in 1945

But Xi’s assault on Chinese civil society undermines these other essential elements of the world order. With the Chinese government’s constant attack on civil rights activists, this aspect of Chinese society lose the ability to impact China’s policy. Some of the issue Xi raised in his Davos speech – environmental protection and income inequality – are issues that the Chinese government was forced to confront because of pressure from its domestic civil society. But the Chinese government now seeks to cut off that important channel of protest.

But perhaps most dangerous is the Chinese government’s current vilification of anything foreign and its intent to keep its people separate from the rest of the world. The peace that much of the West and East Asia has experienced can be traced to the interconnectedness among people. But the Foreign NGO Law and the Chinese government’s persecution of activist who are connected to foreign organizations destroys that vital connection. The National Cyber Security Law only further exacerbates the internationally-isolated internet that already exists in China, keeping Chinese netizens separate from their compatriots in other countries.

Captain America, time to go back in your box! (image courtesy of Marvel Comics)

As the United States and some of Western Europe recede from the liberal world order to deal with their own domestic political turmoil, there will be space for other countries to step into positions of greater leadership on the global stage. China has demonstrated that it wants to. But with its continued assault on civil society and its increased xenophobia, are we sure this is what we really want?

On the one-year anniversary of the Chinese government’s widespread crackdown of the country’s civil rights attorneys, the American Bar Association (ABA) finally made good. After its tepid response last summer to the Chinese government’s detention of over 300 lawyers and advocates, on Friday, the ABA boldly awarded its inaugural International Human Rights Award to Chinese civil rights attorney Wang Yu (pronounced Wong U).

But Wang Yu won’t be in San Francisco on August 6 to accept her award. For Wang Yu and 23 other advocates are still being held by the Chinese government, many charged with the very serious crime of subverting state power, which can carry a life sentence. All because of their representation of some of society’s most vulnerable: the poor, religious minorities, child sex victims, intellectuals that the state has deemed an enemy such as Ilham Tohti. In other countries, this type of representation would be celebrated. But in China, it is seen as a threat to the Chinese Communist Party’s (CCP) rule. Ironically, the rights these advocates fought for on behalf of their clients – the right to meet with their attorney (only 6 of the 24 have had access to an attorney), the right to a fair trial, the right to a speedy trial in accordance with Chinese law – are being denied to them as they are isolated in prison.

Wang Yu, in front of a Chinese court, with a sign stating “Return my right to see my clients”

Arrests and persecution of China’s civil rights lawyers have been ongoing since Xi Jinping ascended to power in 2012. But what makes the July 9 Crackdown unprecedented is its scope and its public nature. Prior arrests and prosecutions, such as that of Xu Zhiyong, have not received the public attention and the vilification that the July 9 Crackdown has received. Soon after the mass round-up of advocates, the state-run Legal Daily ran an infographic calling these lawyers a “criminal syndicate” and heavily suggesting that these lawyers are mere conduits of foreign money and ideas as opposed to their motivation coming from their own intrinsic sense of justice. (Translation of the infographic courtesy of China Law Translate)

But what the Chinese government doesn’t get with its July 9 Crackdown is that it is its own lack of transparency, unbridled corruption and squelching of citizens’ rights that ensures that this movement will continue. Chinese civil rights advocates might be weakened but they are far from dead; to think otherwise does not give these advocates the credit they are due. As long as the CCP continues on its course of one-party rule with little space for public disagreement, their rise is inevitable. Wang Yu became a civil rights lawyer after the police mistreated her in a railway station and then bizarrely charged her with “intentional assault.” Cao Shunli (pronounced Tsao Shun-lee) was just a civil servant until she was fired from her job for alerting her supervisors to the corruption of the local housing lottery. After that, she became a rights activists only to die in police captivity in 2014. Tang Jitian (pronounced Tang Gee Tea-an) was a prosecutor for seven years before he could no longer stand the daily injustice and corruption endemic in the system. He then took the test to become a criminal defense lawyer to represent those whose rights were being trampled by the state.

For sure the ABA’s awarding of its International Human Rights prize falls on the CCP’s increasingly deaf ears. But that doesn’t mean we should remain silent as the CCP dismantles a rule of law society. For Wang Yu, and the advocates imprisoned with her, the ABA’s award is important recognition of their work, recognition that their own government refuses to bestow even as it adopts a few of the changes they have called for to make China a more just society.

Tomorrow will mark an important anniversary in China, an anniversary that will neither be celebrated nor condemned by the Chinese Communist Party; an anniversary that can only be acknowledged privately, by the millions who lost much; an anniversary that is not admitted to by the perpetrators who destroyed so many. For May 16, 2016 is the 50th anniversary of the start of China’s Great Proletarian Cultural Revolution, a decade-long, and ultimately senseless, political movement that shutdown Chinese society and resulted in the deaths of at least 1.5 million people, with tens of millions more publicly persecuted.

The Cultural Revolution began as a way for Mao Zedong to re-assert his leadership and consolidate his power. Only eight years prior, in 1958, Mao launched what history would also determine a worthless campaign – the Great Leap Forward. Less than 10 years after establishing the People’s Republic of China, Mao was gung-ho to move China to the next stage of communism – complete collectivization of farming and industry. China was nowhere near ready, resulting in one of the worst man-made famines of the 20th century, with over 30 million dying of starvation and other related disease. With that debacle, Mao, and with him, Mao Zedong Thought, were marginalized. For a brief period in the early 1960s, more pragmatic communist leaders like Liu Shaoqi (pronounced Leo Sh-ao Chee) and Deng Xiaoping, took control. Under their leadership, China pulled back from complete collectivization and permitted some economic liberalization, allowing society to get back on its feet.

Mao Zedong uses the Cultural Revolution to regain power and legitimize his ideology

But China’s development was short-lived. On May 16, 1966, Mao, at a Party meeting, came out of his semi-retirement and announced the start of the Cultural Revolution. In a notice to the Party – as well as to the Chinese people – Mao warned:

Those representatives of the bourgeoisie who have sneaked into the Party, the government, the army, and various spheres of culture are a bunch of counter-revolutionary revisionists. Once conditions are ripe, they will seize political power and turn the dictatorship of the proletariat into a dictatorship of the bourgeoisie. Some of them we have already seen through; others we have not. Some are still trusted by us and are being trained as our successors, persons like Khruschev for example, who are still nestling beside us.

What ensued were ten years of political purges, including the mysterious deaths of two of Mao’s rivals – Liu Shaoqi and Lin Biao (pronounce Leen Bee-ow), as well as criticisms, abuse and murder of millions of innocent Chinese people as Mao sought to rid China of its “bourgeoisie” elements. Mao permitted Chinese society to resort to violence, carte blanche, to achieve his objectives. Anyone who had a family history of privilege, no matter how far back or how minor, was a target. As were intellectuals or anyone who did not appropriately parrot the words of Mao. These “counter-revolutionaries” would be subject to public humiliation, physical abuse and, at times, death by the hands of their families, neighbors and fellow countrymen. Many would also take their own lives. Schools were disbanded, work was minimal and “struggle sessions” constant. While the most violence erupted in the late 60s to early 70s, the Cultural Revolution was not over until Mao died on September 9, 1976.

OLYMPUS DIGITAL CAMERA

Although the Cultural Revolution is not fully taught in schools in China and government-supported amnesia is the status quo, stories of that bleak time still emerge. The author Yu Hua has probably done the most to keep these memories alive. “To Live,” one of his many books about ordinary people trying to get through the insanity of the Cultural Revolution, is a best seller in China and was made into a celebrated motion picture by the famed director Zhang Yimou.

But more recently, ordinary citizens are demanding that the Cultural Revolution not be forgotten. Last month, on the eve of the Tomb Sweeping holiday in China, where families return to grave sites to pay their respect to their dead relatives, retired Chinese Supreme People’s Court judge, Cai Xiaoxue, explained in a blog post that he cannot. During the onset of the Cultural Revolution, his mother, a teacher, was constantly interrogated by her colleagues, not permitted to return home and in June 1966, died in their custody. Judge Cai’s family did not find out about her death until a month later, by which time her ashes were nowhere to be found. In 1969, after undergoing constant and public humiliations, writing various self-criticisms, and being fired from his post at the publishing house because he was a “capitalist roader,” Judge Cai’s father took his own life. Fifteen-year old Cai is the one who discovered the body and who, the next day, was required to attend a struggle session against his dead father. He was forced to sit in the front row.

Today, Judge Cai has no ashes to honor on Tomb Sweeping Day. His father’s ashes also were never returned. But he has purchased a plot where all he was able to bury were his father’s writings and his mother’s clothes. On the tombstone are carved only two words: Never Forget (勿忘). According to Judge Cai, only by remembering the horror can China ensure that that nothing like the Cultural Revolution happens again.

President Xi Jinping, trying to be more Mao than Mao?

What makes Judge Cai’s story – and this 50th anniversary of the Cultural Revolution – particularly significant is that the current leadership has recently resorted to some of the methods used by Mao and the Red Guards. Like Mao, current Chinese President and General Party Secretary, Xi Jinping, is intent on consolidating his power to a single man rule. Through a campaign against corruption, Xi has rid the leadership of those he perceives as major threats (think Bo Xilai and Zhou Yongkang). And these officials are dealt with outside of the legal system, through the Party disciplinary committee, with a court of law merely an afterthought and rubberstamp. Public, forced confessions and self-criticisms – now on TV – have made a comeback. And, for the past few years, deaths of dissidents while in police custody appear to be a yearly occurrence – Cao Shunli in 2014, Zhang Liumao in 2015, and now, this Friday, environmentalist Lei Yang (although he likely could not be called a dissident).

Never forget the horror of the Cultural Revolution

Will Xi Jinping return to the levels of violence that existed during the Cultural Revolution? Likely not. But even some regression, no matter how small, is a dangerous step. As Judge Cai’s blog post reveals, the Chinese people suffered tremendously during the Cultural Revolution. They do not need to do so again.

For another poignant story similar to Judge Cai’s, see the New York Times’ re-telling of the loss of Chen Shuxiang’s father and the mere $380 he received in compensation for his death.

China’s President Xi Jinping, leading a major crackdown on China’s human rights attorneys.

For the past few years, the Chinese government – under the leadership of Xi Jinping (pronounced See Gin-ping) – has methodically targeted China’s human rights lawyers and advocates. On a yearly basis, dozens of human rights lawyers, known in Chinese as weiquan (pronounced way-choo-ann) lawyers, are detained, some disappeared, and a few tried and convicted usually on the trumped up and amorphous charge of “picking quarrels and provoking troubles” (Art. 293 of China’s Criminal Law). By focusing its energy on key civil rights advocates such as Xu Zhiyong (currently serving a four-year prison term for picking quarrels), Pu Zhiqiang (currently awaiting trial on picking quarrels) and Cao Shunli (died in police custody on a charge of picking quarrels), the Chinese government hoped the weiquan movement would cease from growing.

But it did not. By the beginning of 2014, the number of Chinese lawyers who self-identified as part of the weiquan movement number around 200 (see Eva Pils, China’s Human Rights Lawyers: Advocacy and Resistance). And this number does not include non-lawyer advocates. These lawyers and advocates have taken on a variety of issues: disability discrimination, sexual harassment in public places, product safety, persecution of the religious group Falun Gong, and official corruption just to name a few. While their causes are broad, their approaches are similar: use of the weiquan lawyers’ network; bold courtroom tactics; and use of the media – both traditional and social – to call on the government to abide by its own laws and protect individual rights. It is these tactics and this message that the Chinese Communist Party (“CCP”) considers a threat to its rule.

Attorney Wang Yu

In the early hours of July 9, 2015, the Chinese government tried a new approach to rid itself of the weiquan movement. Beginning with the detention of Wang Yu, a weiquan lawyer known for representing persecuted Falun Gong practitioners, public security authorities instituted a well-orchestrated, nationwide campaign where over 200 weiquan lawyers and advocates were apprehended and brought to various police stations throughout the country for interrogation. According to Amnesty International, as of August 3, 2015, 232 advocates had been targeted in the past month with 27 still in police custody or just “missing.” Their transgressions? Zealously advocating for China’s most vulnerable. Likely though the police will charge them with “picking quarrels” or “inciting subversion of state power.”

Not only is this crackdown unrivaled in its scale, it is also filled with a vitriol not seen since the days of the Cultural Revolution or the weeks after the Tian’anmen massacre. Wang Yu and her law firm, the Fengrui Law Firm, have been lambasted in the state-controlled media with the claims that Fengrui is nothing more than a “criminal gang” in “serious violation of the law (see also China Law Translate‘s translation of the infographic appearing in China’s Legal Daily). Never before has a group of lawyers received such a public and broad rebuke.

Obama & Xi to meet in DC in September.

The Chinese government’s unprecedented and alarming attack on its weiquan lawyers comes only weeks before President Xi Jinping’s first state visit to the United States. Many have called on President Obama to cancel the visit because of the detention of these lawyers. But that would be a mistake. Instead, President Obama should take Xi’s visit as an opportunity to highlight the United States’ commitment to public interest lawyering by inviting many of the country’s various public interest lawyers to a meeting with President Xi. And not just the American Civil Liberties Union and the Center for Constitutional Rights, two organizations that repeatedly sue the federal government for its civil rights transgressions.

Everyday throughout the United States, legal services attorneys challenge the power of the state while simultaneously accepting the state’s funding. In New York, to advance the rights of individuals with disabilities, MFY Legal Services, Inc. sued New York State for warehousing adults with mental disabilities in adult homes instead of integrating them in the larger community as demanded by the Americans with Disabilities Act. In California, the Public Interest Law Project, working with local legal services organizations, has repeatedly sued various city governments for their failure to zone for and finance the development of affordable housing, a requirement under California law. The National Center for Law and Economic Justice sued various New York City agencies for failing to ensure that public benefits information was accessible to the visually-impaired.

Affordable housing, mental health issues, disability discrimination, these are all issues that China is currently grappling with and is why President Obama should highlighting the role that United States legal services attorneys have played in bringing these issues to the forefront and protecting these individuals’ rights in this country. Even though these cases appear to challenge the government’s authority, in the end this approach is necessary to provide an escape valve for growing societal pressures.

Finally, if China wants to ensure that it remains hospitable to international business, it cannot round up weiquan lawyers, refer to them as a criminal gang, deny them access to lawyers (even though such a right is guaranteed by China’s Criminal Procedure Law), and detain them on trumped up charges. A functional legal system cannot be limited to just to business disputes. A legal system is only as strong as the protections it affords society’s weakest. It is part of the reason why some of the legal services cases mentioned above were co-counseled with corporate law firms. It is why the recent letter from New York City Bar Association President, Debra Raskin, to President Xi condemning his government’s recent round-up of public interest lawyers is essential.

State visits are highly choreographed affairs where words and actions matter. Too often this means that words that directly criticize are not said. But here, by inviting Xi Jinping to a session with U.S. public interest lawyers and their supportive corporate law brethren, such as Ms. Raskin, President Obama could get the message across that the Chinese government’s current behavior is not just in violation of its own law and international law, but is also self-defeating. Individual claims must be heard; this is why the United States and every state government continues to fund legal services organizations that directly challenge them.

For the second year in a row, China’s president, Xi Jinping (pronounced See Gin-ping) has taken a page from democracy’s playbook addressing the Chinese people directly in an annual New Year message broadcasted throughout the country. Think the Queen’s annual Christmas message but without the pearls, British accent or lavender dress.

This year, Xi spoke with more confidence about the direction of his rule: deepen reform, continue the corruption crackdown and rule the country in accordance with law. Expect 2015 to bring more corruption inquiries against Chinese Communist Party members both high and low. But what should be made of “rule the country in accordance with law ” (依法治国)? According to Xi, rule the country in accordance with law should “safeguard the rights of people” and “maintain social justice.” But since taken power, Xi has made it clear that this “safeguarding” and “maintaining” is to come from the Party itself, not from the people.

Rights activist & Lawyer Teng Biao

Unlike the U.S. President’s weekly radio address, there is no opposition party response because in China, there is no meaningful opposition party. But if anything comes close to countering Xi’s speech it would be Teng Biao’s (pronounced Tongue Beow) recent op-ed in the Washington Post. Teng, a Chinese human rights lawyer, notes the hollowness of Xi’s mantra of “rule in accordance with the law” in light of the fact that civil rights activists and lawyers have repeatedly been persecuted, prosecuted and in the case of citizen activist Cao Shunli (pronounced Tsow Shun-lee), killed in custody.

Teng also highlights the limitation of reform in China. Contrary to Xi’s speech, legal reform – or at least the version Xi seeks to implement – is not about the people’s rights. Rather it is a way to enhance the Party’s legitimacy. Even the anti-corruption campaign is not about officials following the law; it is a necessity for the Party to maintain its power. But ultimately, if these reforms are to have true success, they will have to undermine the Party’s rule.

While Teng warns of Xi’s empty promises, the question still remains, does anyone – especially business leaders – care. China has become a huge market force that cannot be ignored. Mark Zuckerberg, founder and CEO of Facebook appears to be toying with the idea of entering the Chinese market even though under Chinese law he would be required to conduct the Chinese government’s censorship of Facebook in China. In early December, Zuckerberg appeared to be making nice with China’s censorship regulator Lu Wei (pronounce Lou Way), meeting him in Facebook’s California office and informing Lu that he has been reading the collection of Xi’s speeches (including conveniently leaving a copy on his desk). But could Zuckerberg’s feelings for Xi be mutual? In his New Year speech, Xi used the internet slang “dian zan” (点赞) (pronounce dee-ann zan) to give the Chinese people “thumbs up.” But dian zan – literally meaning to “click praise” – is specific to the social networking age and came into being to refer to the “Like” button in facebook. While a dian zan – like – button is also used by China’s Weibo users, could Xi’s reference be a signal that he will be opening a Facebook account in 2015?

The China Institute‘s Cultural Revolution film series kicked off with a bang the other week with a rarely-viewed Xie Jin (pronounced Sye Gin) film, Two Stage Sisters (舞台姐妹). All of the films being shown makes this little series a gem. But it is the series’ fortuitous timing – with President Xi Jinping’s (pronounced See Gin-ping) recent speech on the arts – that makes it a must see for anyone trying to understand the possible direction China’s arts may take in the future.

Two Stage Sisters, filmed in 1964 during a more open time before the onset of the Cultural Revolution, breaks down any notion that propaganda films from this time period could not also be art. The film follows the lives of two Shaoxing opera actresses – Yuehong and Chunhua – as they travel through a turbulent time in China’s history. The film opens in 1935’s rural China. Chunhua, who has run away from her in-laws who had plans to sell her, finds herself hiding in the store room of a local opera troupe. The troupe – run by Yuehong’s father – adopts her and discovering that she has a natural talent for Shaoxing opera, makes her the star of the show along with Yuehong. Showing the abusive practices of pre-revolution China, after the father dies, the two stage sisters are sold to a Shanghai opera troupe to pay off their father’s debts.

In early 1940s Shanghai, Yuehong and Chunhua become stars. But slowly, as China begins to change, so does the relationship between the two women. Chunhua remains the virtuous peasant. Even when a wealthy patron wants to adopt her as her daughter, Chunhua, ever pure to the art, rejects the patron’s advances. Yuehong questions Chunhua’s decision and is slowly seduced by the opera troupe’s manager as well as the Guomingdang, bourgeois lifestyle that he offers. While Chunhua, inspired by Lu Xun’s work, begins to write revolutionary operas, Yuehong retires and fills her life with pearls, furs and diamonds.

Two Stage Sisters is marked by amazingly intense melodrama with the growing tension between the two sisters and the impending revolution

Chunhua (left) and Yuehong begin to lead different lives

building in every scene. It is in that melodrama that director Xie Jin excels and makes this film into a masterpiece. The drama crescendos in an artfully shot courtroom scene that demonstrates that if history did not get in the way, Xie Jin could have been China’s Kurosawa.

But like most things in China, history and politics did get in the way, essentially putting Xie Jin’s career on hold for the next twenty years. Two Stage Sisters, filmed with the approval of Xia Yan (pronounced Syia Yen), China’s Vice Minister of Culture, was produced at time when Mao Zedong’s power was at its lowest due to the tragic debacle of the Great Leap Forward. But that period would not last and it is the Cultural Revolution itself that becomes Mao’s plan to regain complete power.

With the start of the Cultural Revolution in 1966, Xie’s film was condemned precisely because it had not been hard enough on Yuehong, the sister that succumbs to materialism. Xie Jin’s art of portraying even the “villain” in a nuanced and sympathetic manner did not fly during the Cultural Revolution. For the Red Guards who would begin to rule society for the next few years, Chunhua’s forgiveness of Yuehong came too easy. For them, Yuehong – an enemy of the socialist state – should have been punished more for her capitalist ways.

Director Xie Jin at work.

Additionally, produced with the assistance of Xia Yan, a vocal critic of Mao’s Great Leap Forward and a target of Mao’s wife and former actress Jiang Qing, Two Stage Sisters’ condemnation was inevitable. Soon after the start of the Cultural Revolution, Xia was purged and jailed for the eight years. Xie Jin would spend much of the Cultural Revolution and what should have been the prime of his career in a labor camp.

Two Stage Sisters, and the history that surrounds it, shows that art in the People’s Republic of China, while ostensibly required to “serve the people” in fact serves the political whims of its leaders. Given this history, Xi Jinping’s recent October 15, 2014 meeting with China’s artists might be a bellwether for his attempts to tie art not just more to the Chinese Communist Party but more to his rule. The Cultural Revolution found its origin in Mao’s 1943 speech at the Yenan Talks on Literature and Art. For Mao, the revolution had two fronts – the arts and the military; there was no such thing as art for art’s sake. Art and literature were essential for a successful revolution and the Yenan Talks made clear that art and literature needed to extol the masses and propel them forward for greater revolution. At a point though, Mao noted that with the masses’ rising cultural levels, art standards would have to rise as well. But the art would still need to serve the people.

Xi’s October 15 speech, while not as obvious, has aspects that are eerily similar to Mao’s 1943 Talks. According to Xinhua News agency, which summarized Xi’s remarks rather than print them, Xi called on artists and authors to be one with the people and to use their art to promote the Party: “Literature and art must reflect well the people’s wishes; it must persist in the fundamental orientation of serving the people and serving Socialism” (translation courtesy of Rogier Creemers). Xi also digressed on the need to produce quality works for the masses’ increased cultural awareness.

Will Xi try to dominate the arts the way Mao did during the Cultural Revolution? Or was this just a roundabout way to state the obvious: even

Xi Jinping speaking on arts in literature in today’s China

Chinese people don’t really want to watch Chinese movies and there is a genuine need to improve quality? Or is it something else? For sure we won’t be seeing a Cultural Revolution anytime soon. But if I was an artist, author or director in China right now, with a speech that makes reference to “a hundred flowers bloom and a hundred schools of thought contend (百花齐放、百家争鸣的方针),” I would certainly sit this round of art-making out. That unfortunately means the arts in China – at least those sanctioned by the state – will continue to stay at its current level.

Two Stage Sisters
Director: Xie Jin
1964Rating:

**********************************************************************************The China Institute’s Cultural Revolution Film Series runs now through November 19, 2014 with a movie shown every Wednesday night. Tickets are $15 and each movie is followed by a Q&A session with either the director or someone expert in the movie. The China Institute is located at 125 E 65th Street in New York City.

Qian Gang over at the China Media Project took a hit for the team earlier this month when he read through the recently-published (and likely dull) volume of Chinese president Xi Jinping’s speeches. As Qian notes, glaringly absent from “A Primer of Important Speeches by General Secretary Xi Jinping” (“the Primer“) is Xi’s ground-breaking 2012 speech that proclaimed the importance of the Chinese Constitution in ruling China.

Bye, Bye, Bye: A Disappearing Constitution

In December 2012 – with less than a year in power – Xi Jinping (pronounced See Gin-ping) commemorated the 30th anniversary of China’s 1982 Constitution with a speech extolling the virtues of that Constitution. In that speech, Xi explained that it is the Constitution which must be used to constrain the government and the Chinese Communist Part (“CCP” or “the Party”): “[n]o organization or individual has the privilege to overstep the Constitution and the law.” Appearing to upend prior leader’s commitment to the Party as paramount to the Constitution, Xi highlighted that “[r]ule of the nation by law means, first and foremost, ruling the nation in accord with the constitution; the crux in governing by laws is to govern in accord with the constitution” (emphasis added).

But the currently-published Primer excludes this speech. Was this intentional Qian wonders? As Qian points out in his post, in China, anything this important is intentional. In a society long trained to be hyper-sensitive to a leader’s speech, back in December 2012, Xi’s speech seemed like a watershed. An inspiration. The editors at the Guangdong-based newspaper, Southern Weekend, sure thought so. Only a few weeks after Xi’s 2012 speech, the editors sought to follow his lead, titling the paper’s 2013 New Year’s editorial “China’s Dream, the Dream of Constitutionalism.”

Either the Southern Weekend editors read the tea leaves wrong or, more likely, not everyone in the CCP leadership supported Xi’s call for constitutionalism. “China’s Dream, the Dream of Constitutionalism” never saw the light of day. Instead, Guangdong propaganda officials quickly stepped in, changing the title and watering down the article to one that was effectively a paean to the Party-controlled system of governance.

Hello, Is it Me You’re Looking For? The Constitution Re-emerges

Xi Jinping says Hello Again to the Chinese Constiution

With the suppression of the original Southern Weekend New Year’s editorial and the exclusion of Xi’s 2012 speech from the recently-published Primer, constitutionalism would appear to be dead in China, right? Wrong. Just last week, in a speech commemorating the 60th anniversary of the founding of the National People’s Congress (“NPC”), Xi again raised the banner of constitutionalism, stating that the Constitution was China’s most basic document and that ruling the nation must be done in accordance with that Constitution.

Did Xi just not get the hint? Hardly. As Qian Gang, in a new blog post at China Media Project points out, what we are seeing is a rhetorical power play at the highest levels of the CCP. Xi’s recent pronouncement demonstrates that he wants to continue with this idea that the Constitution is crucial to the CCP’s governance. But then there are others – others that might have had influence on the final cut of speeches from Xi’s Primer – who are just not that into constitutionalism. Likely demonstrating the power of this other group, the Global Times, a conservative government-run newspaper, ran an editorial in its English edition noting that “…the popularity of constitutional governance in the public sphere has only brought negative results in recent years. We propose replacing the concept with the rule of law” (the Chinese version of the editorial is slightly different, putting Xi’s concept of constitutionalism in a historical context).

If you are dying to know what happens to the Constitution in current Party rhetoric – does it stay or does it go – you only have to sit tight for a

Another CCP Plenary is to Occur in October with Rule of Law as the Topic of Conversation

month. In October, the CCP will hold the fourth plenary session of the CCP’s 18th Central Committee and the central agenda item is rule of law. As the CCP recognized in its announcement, the rule of law is “vital for the Party’s governance, people’s happiness and the nation’s stability.” Expect the Xi camp to call on that rule of law through the Constitution; expect there to be opposition. How public this battle will be is anyone’s guess. Evidently the rhetorical use of the Constitution is causing divisions within the leadership.

But Does the Constitution Make A Difference in China’s Political-Legal System?

But Xi is far from a constitutional convert, at least not in the Western sense. Even with this rhetorical debate at the upper echelons of the CCP, Xi’s constitutional dream is far from a free society that promotes individual’s civil rights. Rogier Creemers, a post-doctoral research officer at Oxford’s Programme in Comparative Media Law and Policy, explained this to China Law & Policy. The State is merely a reflection of the society which it governs and according to Creemers, “the [Chinese] State is there to restore the Chinese nation back to its collective greatness. One of the key ways in which the CCP justifies its rule is that it knows best how to generate [that] development. In that sense, law should not be used to constrain the State in its search for national rejuvenation, but to consolidate the progress that has been made on the road towards it. In the economic realm, that means law very often is the outcome of years of policy experimentation, while in the criminal realm, it means vast powers for the State to deal with those who would oppose it, where necessary.”

What is Rule of Law in China?

Thus, even for Xi, use of the Constitution is very top down and is not necessarily that divergent from the official concept of “rule of law.” The Global Times, in its Chinese version of the editorial makes that clear. To the Global Times, constitutionalism should be constructed as a neutral term, more in line with what the CCP has determined is the rule of law (“宪政本来是个中性词，与依法治国混用未尝不可”). China-watcher Shannon Tiezzi, in the Diplomat, perfectly put her finger on what this rule of law is: “the rule of the CCP through the law. The CCP still controls the legal system, but uses it as one of many available tools to enforce edicts from the center.”

Xi, even with his rhetoric of the Constitution, follows that Party line. Hence his focus on the idea that the Constitution guarantees that no Party member can act outside of the confines of that document (think Bo Xilai and Zhou Yongkang, both powerful party members that have been taken down by Xi). But that enforcement still emanates from the center; there is no place for grassroots to help with Xi’s crackdown on government corruption. Activists Xu Zhiyong (pronounced Sue Zher-young), Liu Ping (pronounced Leo Ping), Wei Zhongping (pronounced Way Jung-ping), and Li Shen (pronounced Lee Shen) know this first hand. In attempt to fight corruption, all publicly demanded that government officials disclose their assets. All four have been sentenced to prison terms from three to six years under Xi’s rule.

For Xi, the elements of the Constitution that call for individual rights are to be ignored, which fits with Creemer’s contention of the purpose

Activist Liu Ping in a photo before she was sentenced to six and a half years in prison

of the State in China. In fact, Xi’s reign has witnessed one of the largest crackdowns on human rights activists since likely 1989. As the non-profit Chinese Human Rights Defender‘s has noted, since March 2013 – just three months after Xi’s Constitution speech – in addition to the four mentioned above, over 70 rights activists, lawyers and citizens have been detained, arrested, imprisoned or just “disappeared.” Their crimes? Usually the minor charge of “gathering a crowd to disrupt order in a public place” or “provocation and causing a disturbance,” charges distorted by public security forces beyond their original meaning. The real issue? These activists often call upon the government to protect their constitutional rights.

Rule of law in China “is about delivering economic outcomes and a certain ideal of virtuous behavior by agents of the State” Creemer stated. Nothing in Xi’s rhetorical use of the Constitution diverges from that concept.

Does use of the Word Constitution Mean this Type of a Government?

But the Party is nervous about Xi’s continued use of the word, hence the Global Timeseditorial which criticizes the “liberals -自由派” (likely the rights activists who have been thrown in jail) who seek to “distort” this Party-mandated perception of the rule of law and putting others on guard to avoid such “traps.” But can the idea of constitutionalism be raised without giving life to those provisions of the document Xi and the Party would rather ignore – freedom of speech, of association, of religion? Is Xi’s conception of the Constitution – which would limit official corruption and provide for greater economic development – enough to satisfy the masses? Or will the Chinese people continue to demand that the Chinese dream be a Western-style constitutional one?